Patterson v. Frazier Bros., Nos. 95, 96, 97

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Nos. 95, 96, 97 | Pa. | Jan 7, 1889

OpinioN,

Mr. Justice Paxson :

These cases all depend upon the same principle. They were mechanics’ claims filed against a block of buildings in Pittsburgh, known as the Patterson Block. The claims filed were for the “ erection and construction,” while the evidence is uncontradicted that the work was done and the materials were furnished for alterations and repairs. The learned judge submitted to the jury the question whether the alterations were such as to render it practically a new building, and they found in favor of the plaintiffs.

A lien will not lie for alterations and repairs under the act of 1836: Driesbach v. Keller, 2 Pa. 77" court="Pa." date_filed="1845-12-26" href="https://app.midpage.ai/document/driesbach-v-keller-6227212?utm_source=webapp" opinion_id="6227212">2 Pa. 77; Landis’s App., 10 Pa. 379" court="Pa." date_filed="1849-05-22" href="https://app.midpage.ai/document/in-re-howett-6228259?utm_source=webapp" opinion_id="6228259">10 Pa. 379; Summerville v. Wann, 37 Pa. 182" court="Pa." date_filed="1860-10-28" href="https://app.midpage.ai/document/summerville-v-wann-6231286?utm_source=webapp" opinion_id="6231286">37 Pa. 182. Where, however, the structure of a building is so completely changed that, in common parlance, it may properly be called a new building, or a re-building, it comes within the act of 1836: Armstrong v. Ware, 20 Pa. 519" court="Pa." date_filed="1853-06-20" href="https://app.midpage.ai/document/armstrong-v-ware-6229403?utm_source=webapp" opinion_id="6229403">20 Pa. 519. The law upon this subject was finally settled in Miller v. Hershey, 59 Pa. 64" court="Pa." date_filed="1868-05-18" href="https://app.midpage.ai/document/miller-v-hershey-6233311?utm_source=webapp" opinion_id="6233311">59 Pa. 64, where it was held that alterations and repairs of a building, which do not fairly change its exterior into a new structure, cannot confer a lien. The subject is there very thoroughly discussed by Justice Agnew, and it is unnecessary for me to add anything to what he has so well said. And where the facts are ascertained or undisputed, it is for the court to determine what does or does not constitute new buildings: Norris’s App., 30 Pa. 122" court="Pa." date_filed="1858-07-01" href="https://app.midpage.ai/document/norriss-appeal-6230499?utm_source=webapp" opinion_id="6230499">30 Pa. 122; Armstrong v. Ware, supra.

In the case in hand, the alterations were extensive, but were almost wholly upon the interior of the building. The exterior remained substantially the same. The principal external alter*421ation was a door put in one of the store-rooms, which instead of a store-room was changed into the entrance to a hotel. The glass front and windows of the store-room were retained, and the only change was in the door. A few windows were cut in the rear of the building overlooking alleys, but they were not visible from tbe front. From the outside the building presented substantially the same appearance after the alterations as before. How then can it be said that it was substantially a new building ? Under the circumstances we tbink it was the duty of the learned judge to instruct the jury that there was no such change as to amount to a new erection.

The judgment is reversed in each case.